ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: FS-12-4188-00
Date: 20130207
B E T W E E N:
JEANETTE KHAN
Jeanette Khan, on her own behalf
Applicant (Respondent)
- and -
OMAR KHAN
Respondent (Appellant)
Murray Lightman, for the Respondent (Appellant)
Heard: January 28, 2013
REASONS FOR JUDGMENT
Lemon J.
Issue
[1] Mr. Khan appeals an Ontario Court of Justice decision of August 22, 2012. He submits that the trial judge misapprehended the evidence and came to a conclusion which was not supported by the evidence. He further submits that the trial judge raised and determined an issue that was not put into dispute by the parties.
Background
[2] Prior to this appeal, Mr. and Mrs. Khan proceeded without lawyers.
[3] In his Application, Mr. Khan plead:
I ask that Omar Khan have access to the following child(ren): Cody Khan (11-Oct-01) and Kiley Khan (15-Aug--04) as follows: as outlined in September Agreement dated 4-Aug-11. Currently Jeanette Khan withholds children when in a bad mood.
I ask that the child support be changed as follows:
Starting on 15-Apr-12, Omar Khan pay to Jeanette Khan $ varies for the following special or extraordinary expenses:
Child’s Name
Type of Expense
Total Amount
of Expense
Payor’s Share
Terms of Payment
Cody Khan
Daycare
$ varies
63% after tax
Monthly, 15th
Kiley Khan
Daycare
$ varies
63% after tax
Monthly, 15th
Other: Applicant changes daycare arrangements every month. Request receipts be submitted to FRO; so payor can pay 63% after taxes.
[4] In her Answer, Ms. Khan requested:
I ask that Jeanette Khan have custody of the following child(ren): Cody Khan Oct 11/01; Kiley Khan Aug 15/04.
I ask that Omar Khan have access to the following (child(ren): Cody Khan Oct 11/01; Kiley Khan Aug 15/04 as follows: Tues. and Thurs. evenings and every other weekend (to stay as currently exists in Agreement dated Aug 4/11)
Based on the payor’s income of $118,452, Omar Khan pay child support to Jeanette Khan in the amount of $1,641.51 per month for the following child(ren) Cody Khan Oct 11/01, Kiley Khan Aug 15/04 with payments to start on
This amount is the table amount listed in the Child Support Guidelines.
Starting on Mar 16, 2012, Omar Khan pay to Jeanette Khan for the following special or extraordinary expenses:
Child’s Name
Type of Expense
Total Amount
of Expense
Payor’s Share
Terms of Payment
Cody Khan
Kiley Khan
Swimming? Camp? Other activities?
- I ask that the outstanding child support owed be paid as follows:
The child support owed to Jeanette Khan be fixed at $2,706.50 as of Mar 16, 2012 and Omar Khan pay to Jeanette Khan $_____ per month, with payments to begin on Mar 16, 2012 until the full amount owing is paid.
[5] The issues of custody and access were settled prior to trial. I am advised that the parties agreed that the terms of their separation agreement were to remain unchanged. The parties agree that at the time of the trial and now, that agreement was and is in full force and effect. The important paragraphs of that agreement are set out in Schedule A to these reasons.
[6] In brief, the agreement confirms a joint custody arrangement with equal time for the children with both parents. The crux of the time sharing is set out in paragraph 3.2 as follows:
3.2 The children will reside with Omar on Tuesdays, Thursdays, and alternations [sic] weekends from Friday until Sunday. On Sundays, the time-sharing arrangements for the children shall change, such as that each party will have one child with them on an alternating basis for Sunday evenings. In the event of a long weekend, the children would be together.
[7] There is then a detailed holiday schedule which divides the time equally including three weeks of summer vacation time to each parent. The parties also determined child support by setting off the support owed one to the other. They shared the Child Tax Benefit equally.
[8] No evidence was lead at trial other than the pleadings that I have before me. Based on that material, the trial judge determined as follows:
[4] They entered into a separation agreement (“the agreement”) on August 4, 2011, which provided that the respondent pay $797.00 per month as child support on the 15th day of each month. At the time, his income was stated to be $118,300.00 for which the Guideline amount is $1,640.00. The applicant’s income was $55,000.00 and, although not clearly stated in the agreement, I assume the support agreed to was a set off as a reflection of the joint custody and time sharing. However, the schedule set out in the agreement, i.e. Tuesdays, Thursdays and alternate weekends from Friday to Sunday; half of Christmas and three weeks in the summer, does not in my view amount to over 40 percent or otherwise justify support in an amount less than the Guidelines.[ Emphasis mine]
[10] While there is an obligation to make full and complete disclosure, I note that both parties received independent legal advice before signing the agreement.
[14] Overall, I find that the child support provisions in the agreement are drafted in a manner which heavily favours the respondent.
[15] For example, paragraph 4.13 provides that the respondent is entitled to claim the child tax benefit and other child related payments for six months of the year, which would normally all be paid to the person having primary care of the children.
[24] The applicant in her response to the motion to change has asked that the respondent pay Guideline child support. There is no evidence before to justify any other order.
[25] Accordingly, I make the following order:
The respondent shall pay for the support of the two children the sum of $1,640.00 per month, effective January 1, 2012, based on an income of $118,300.00 per year.
The respondent shall pay 71 percent of all s.7 expenses incurred by the applicant for the children, including daycare and summer camp, effective January 1, 2012.
Position of the Parties
[9] Mr. Khan submits that there was no evidence upon which the trial judge could find that the father did not have “a right of access to, or physical custody of, a child for not less than 40 percent of the time over the course of the year”. The father submits that barring that evidence, the agreement confirms an equal sharing regime that should have invoked a sharing of the support obligation pursuant to s. 9 of the Ontario Child Support Guidelines. Since the trial judge failed to set out reasons for finding other than an equal sharing of time, her decision should not be upheld. Finally, the appellant submits that the trial judge set aside the separation agreement without being asked to and without giving reasons for doing so.
[10] Both parties confirmed that they have now resolved the initial 2012 section 7 dispute. Mr. Khan therefore submits that the trial decision should be set aside and no further litigation should follow. He is content to simply remain bound by the agreement.
[11] In response, Ms. Khan submits that the trial judge was correct and that the decision should not be set aside. She submits that the trial judge, on the evidence before her, properly considered whether the payments were fair and balanced and that decision should not be set aside. She too does not wish to return to court for a rehearing.
Analysis
[12] The evidence before the trial judge was nothing other than an equal sharing of parenting time. The parties’ agreement sets out a joint parenting plan providing both parties with equal time with the children. The intention of the parties is confirmed by their sharing equally in the Child Tax Benefit. Both had counsel at the time of the negotiations and there is nothing in the record to suggest anything unreasonable or unconscionable in the terms or the negotiation of the agreement. Both parties were content with the agreement at the time of the trial.
[13] Other than her reasons as set out above, the trial judge does not provide reasons for finding that the father has less than 40 percent of the time nor does she provide reasons as to why the separation agreement should be set aside.
[14] Ms Khan sought full Guideline support on the basis of her request that custody of the children would be to her. However, when she agreed that the agreement would remain in force, there was no material change in circumstances that would have allowed the trial judge to order full support as she did.
[15] I agree with the appellant that appellate courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence or unless the award is clearly wrong. It appears that the trial judge misapprehended the evidence with respect to finding that Mr. Khan did not meet the 40 percent threshold. This does result in a palpable and overriding error. With that error, the balance of her reasons is unsupportable.
[16] In the normal course, I would set aside the order and remit the matter back to the Ontario Court of Justice for a rehearing. Since the parties advise that they have resolved the 2012 s. 7 issue that started this proceeding, there is no need to return the matter to Court.
[17] Accordingly, the appeal is allowed and the order is set aside. The parties continue to be bound by their separation agreement signed August 25, 2011.
[18] I am advised that the parties may not have been able to resolve the s. 7 issue for 2013. Further to my comments in court, I am prepared to meet with the parties to attempt to resolve that issue within the next 30 days. If they wish to do so, an appointment can be arranged through my office.
[19] If Mr. Khan seeks his legal costs, he may make written submissions within the next 21 days. Those submissions shall be no more than three pages excluding any offers to settle or bills of costs. Ms. Khan’s submissions shall be made within 15 days thereafter on the same terms.
Lemon J.
Released: February 7, 2013
Schedule A
3.1 Jeanette and Omar will have joint custody of the children.
3.2 The children will reside with Omar on Tuesdays, Thursdays, and alternations weekends from Friday until Sunday. On Sundays, the time-sharing arrangements for the children shall change, such as that each party will have one child with them on an alternating basis for Sunday evenings. In the event of a long weekend, the children would be together.
3.3 This holiday residence schedule overrides the regular schedule.
School Spring Break
(a) Should either party wish to have the children in his or her care for the school spring break, and should there be conflict between the parties as to which party may have the children in the applicable year, then in odd numbered years Omar shall have first choice to have the children with him, and in even-numbered years, Jeanette shall have first choice of having the children reside with her.
Easter Weekend
(b) The children will reside with Jeanette in odd-numbered years and with Omar in even-numbered years, from their leaving school on the Thursday before the Easter weekend until their return to school on the following Tuesday.
Mother’s Day
(c) If the children are not otherwise with Jeanette on this weekend, the children will reside with Jeanette on Mother’s Day weekend, from Saturday at 6:00 p.m. until their return to school on Monday.
Victoria Day Weekend
(d) The children will reside with Omar on Victoria Day weekends in odd-numbered years and with Jeanette in even-numbered years, from their leaving school on Friday until their return to school on Tuesday.
Father’s Day
(e) If the children are not otherwise with Omar on this weekend, the children will reside with Omar on Father’s Day weekend, from Saturday at 6:00 p.m. until their return to school on Monday.
Thanksgiving
(f) The children will reside with Omar on Thanksgiving in odd-numbered years and with Jeanette in even-numbered years. If the alternating schedule for Thanksgiving and alternating schedule for weekends coincide with the same parent; then the other parent shall have access to the children for dinner one night that weekend.
Halloween
(g) Jeanette will have the children for Halloween in odd-numbered years and Omar will have them in even-numbered years, from 3:30 p.m. until 10:00 p.m. The parent who has the children for Halloween will be responsible for the children’s costumes.
Christmas Vacation
(h) The parties will share equally the children’s Christmas school break. The children will reside with Omar for the first half of the break in odd-numbered years and with Jeanette for the first half in even-numbered years. The first half will start at 3:30 p.m. on the children’s last day of school in December and end at noon on December 27. The second half will start at noon on December 27 and end on the morning the children return to school in January.
Christmas Day
(i) On odd-numbered years Jeanette shall be allowed to join the children on Christmas morning or alternatively have them for a few hours in the evening. On even-numbered years Omar shall be allowed to join the children on Christmas morning or alternatively have them for a few hours in the evening.
Child’s Birthday
(j) Each child will spend his or her birthday in accordance with the regular schedule.
Vacation with Children
(k) Each party will have access to the children for up to three weeks per year, in one or two week intervals, for the purpose of going on vacation with the children. In that event, the other parent shall be provided with at least two weeks’ notice.
Vacation without the Children
(l) Each parent shall be entitled to take up to three weeks’ vacation per year in one or two week intervals, and during such vacation the other parent shall be responsible for the care of the children. The party going on vacation shall provide the other parent with at least one week’s notice.
3.4 Omar and Jeanette will at all times maintain treasonable and flexible position respecting the residency arrangements for the children and at all times the best interests of the children shall prevail. Accordingly, if special occasions, extra-curricular activities, holidays, excursions or other opportunities become available to the children or to Omar and Jeanette, neither of them shall insist that the residency arrangements set out herein shall be adhered to without exception.
3.5 The parent residing with the children at the relevant time will make the daily decisions affecting their welfare.
3.6 Jeanette and Omar will make important decisions about the children’s welfare together, including decisions about the children’s:
(a) education,
(b) major non-emergency health care,
(c) major recreation activities, and
(d) religious activities.
If the parties cannot agree, they will use the section of this agreement entitled “Dispute Resolution” to resolve the dispute.
3.7 If a child needs emergency medical care while with one parent, that parent will promptly notify the other of the emergency.
3.8 Jeanette and Omar will live near each other so that the children will have frequent contact with both parents. Neither parent will move the children’s permanent residence from Mississauga without the other’s written consent or a court order.
3.9 The above-noted restriction on moving the children’s permanent residence is not intended to limit the parents’ ability to take the children out of the jurisdiction of the court for the purposes of travel with the children.
4.1 In this section,
(a) “Table” and “income” mean “Table” and “income” as those terms are defined in s.2 (10 of the Guidelines,
(b) “special or extraordinary expenses” means “special or extraordinary expenses” as this phrase is defined in s. 7(1) of the Guidelines,
(c) “child support” refers to the monthly amount upon which the parties have agreed and may include both Table support and special or extraordinary expenses.
4.2 For purposes of determining child support for Cody and Kiley, Jeanette’s annual income is $55,000.00 and Omar’s annual income is $118,320.00.
4.3 Commencing on the 15th day of the month following the execution of this agreement, and on the 15th day of each month until further court order or agreement of the parties, Omar will pay to Jeanette child support for Cody and Kiley in the amount of $797.00 per month.
4.4 Omar’s income is $118,320. Jeanette’s income is $55,000. In addition, Jeanette is receiving a lump sum payment representing future spousal support based upon a seven year period. For the purpose of apportioning section 7 expenses, the parties agree that for the next seven years, there will be added to Jeanette’s actual income notional spousal support in the amount of $751 per month, such that Jeanette’s proportionate contribution to the section 7 expenses will be based upon an amount equal to her actual income plus the sum of $9012 per annum. At the expiration of the seven year period, Jeanette’s proportionate share of the section 7 expenses will be based only upon her real income without any further notional additional income.
4.5 The children’s current special or extraordinary expenses are:
(a) Child care in the amount of $600.00 per month. In addition to the sum of $797.00 per month set out above, Omar will pay to Jeanette the sum of $257.00 per month as his proportionate share of the childcare expense for a total of $1,054.00 per month.
4.6 The parties will only contribute to a child’s special or extraordinary expenses (such as summer camp, sport activities, etc.) if the parties consent to the expenses in advance, in writing. Neither party will unreasonably withhold consent. If the parties cannot agree, they will use the section of this Agreement entitled “Dispute Resolution” to resolve this issue.
4.7 Child support for a child ends when the child is no longer a “child” as defined by the Guidelines.
4.8 Once a year, if either party asks in writing, Jeanette and Omar will review the child support arrangements in this Agreement and, if they do not agree about any change, they will use the section of this Agreement entitled “Dispute Resolution” to resolve this issue.
4.9 If either party asks in writing for disclosure, both will, in writing, provide the following information to the other, within 30 days of the request:
(a) the documents required in s. 21(1) of the Guidelines that have not previously been provided,
(b) current information about the children’s special or extraordinary expenses,
(c) current information about a party’s claim of undue hardship, if any, and his or her household’s standard of living,
(d) details of Canada Child Tax Benefits or other child benefits received in the previous year and anticipated in the coming year, and
(e) any other information needed to review child support.
This may be asked for once a calendar year.
4.10 Until the support is adjusted by an amending agreement, court order or arbitration award, Omar will continue to pay the child support and his contribution to the children’s special and extraordinary expenses under the parties’ most recent written agreement, court order or arbitration award.
4.11 Either Jeanette or Omar may seek a change in child support if there is a material change in the condition, means, needs or other circumstances of Jeanette, Omar, Cody or Kiley that would affect child support.
4.12 Whoever seeks a change will give the other, in writing:
(a) notice of the proposed change,
(b) evidence supporting the proposed change, and
(c) any request for information necessary to determine the issue.
4.13 Jeanette may claim the Canada Child Tax Benefit (including the National Child Benefit Supplement and the Child Disability Benefit if applicable), the Universal Child Care Benefit, and the refundable children’s GST/HST credits for the first six months of each calendar year for Cody and Kiley, and Omar may claim the Canada Child Tax Benefit (including the National Child Benefit Supplement and the Child Disability Benefit if applicable), the Universal Child Care Benefit, and the refundable children’s GST/HST credits for the latter six months of each calendar year for Cody and Kiley. These benefits will not affect the child support in this Agreement.
4.14 Omar will pay the child support directly to Jeanette and not to the Family Responsibility Office. Neither party will file this Agreement with the Family Responsibility Office for enforcement unless Omar defaults in payment and does not pay within five days of getting a written notification from Jeanette, at which time she may file the Agreement with the court and the Family Responsibility Office for enforcement.
4.15 Omar will pay child support by delivering a cheque to Jeanette by no later than the 15th day of each month.
COURT FILE NO.: FS-12-4188-00
DATE: 20130207
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JEANETTE KHAN
Applicant (Respondent)
- and –
OMAR KHAN
Respondent (Appellant)
REASONS FOR JUDGMENT
Lemon J.
Released: February 7, 2013